Curious about the recent updates to Wisconsin’s 2024 divorce laws? Fortunately, there have been no major changes and the legal environment remains consistent. This article aims to clarify how these existing laws apply specifically to your divorce situation, covering topics such as property division, support, and custody based on current court perspectives in Wisconsin.
Being aware of divorce laws in Wisconsin puts you in a strong position when considering your divorce questions. Wisconsin courts now emphasize the concept of equity during the court proceeding when making determinations between former spouses. Wisconsin courts are now directed to always consider the child's best interest when deciding that impacts a minor whenever children are involved.
In this article, we explore Wisconsin divorce law, taking a look at some pertinent questions you may have about the current status of the Wisconsin divorce process. In particular, we will answer:
- Do You Need To Show Cause For Divorce In Wisconsin?
- How Long Do You Have To Be Separated Before Divorce In Wisconsin?
- Is Counseling Required Before Divorce In Wisconsin?
- Does It Matter Who Files Divorce First In Wisconsin?
- How Does The Length Of Marriage Affect Divorce In Wisconsin?
- How is Alimony Calculated in Wisconsin?
- How Long Do You Have To Be Married In Wisconsin To Get Half Of Everything?
- Recent Changes to Wisconsin Divorce Laws
- Do You Need To Show Cause For Divorce In Wisconsin?
Wisconsin legislatures have adopted the trend of no-fault divorce. This means that either spouse may bring a petition for divorce before a Wisconsin court purely on the grounds they believe the marriage has become irretrievably broken. Note only one spouse needs to harbor this belief and bring a petition to terminate the marriage. The objection of the other spouse cannot unilaterally prevent the divorce proceeding from the beginning.
The concept of a marriage being "irretrievably broken" is construed by Wisconsin courts in the broadest terms possible. Wisconsin law leaves it up to the individuals in the marriage to determine if their marriage can no longer be sustained.
The concept of no-fault divorce also significantly impacts the proceedings themselves. Under this theory of divorce, Wisconsin courts do not consider infidelity on one or both spouses when making any determination related to the divorce proceeding. Note that while no-fault divorce removes the necessity of formulating an argument for why divorce is necessary, there is still a waiting period in Wisconsin between the breakdown of the marriage and a divorce petition.
How Long Do You Have To Be Separated Before Divorce In Wisconsin?
Wisconsin requires the married couple to observe a period in which they have the opportunity to cool down before they can file a petition for divorce before a court. This period is set by Wisconsin statute at 120 days of separation. The reasoning behind this rule is this time can potentially serve as a period of contemplation for the couple, allowing the parties to think through their decision to terminate the marriage. This would also theoretically reduce the number of divorce proceedings brought in the heat of passion that is later dropped as the spouses consider the gravity of their actions, potentially reducing the stress on Wisconsin courts. You can also consider a legal separation versus a divorce.
After the 120 days of separation have been completed, either spouse has the right to file a divorce petition, provide service to the other spouse, and initiate the divorce proceeding in court. The timeframe of divorce is determined by how contentious the proceeding is and how complicated the marriage was, i.e., length, amount of marital property, and whether the marriage bore any children.
Note: The average divorce in Wisconsin can take anywhere from around 6 to 12 months and, in some cases, beyond. Also, it is important to keep in mind that certain factors can affect the trajectory of your divorce and alimony, such as adultery or extramarital affairs.
Is Counseling Required Before Divorce In Wisconsin?
There is no legal requirement, generally speaking, in Wisconsin that the married couple seeking divorce need first make use of a marriage therapist or counselor. Under the no-fault theory of divorce, it is up to the parties to determine the health of their marriage, and an attempt at reconciliation is not generally legally required. However, there are circumstances where a Wisconsin court may take it upon themselves to encourage the couple to undergo marriage counseling before they hear a divorce case.
If the married couple has not lived apart for longer than 12 months, and both parties do not agree that the marriage is irretrievably broken, the court can recommend Counseling. Suppose the couple does not undergo Counseling or is otherwise unable to reconcile. Under Wisconsin statute, the couple can seek out a qualified counselor's services and set a new date for the divorce hearing up to sixty 60 days in the future. The divorce proceeding will continue at the end of the court-mandated period, regardless of whether one of the parties still objects to the marriage being terminated.
Even though Counseling may not be required by Wisconsin law, it may still be desirable. Counseling allows the couple to discuss their concerns in a constructive and safe setting. Furthermore, courts, at times, may order mediation for the couple. Even if divorce is ultimately necessary, mediation can make the process more agreeable since both parties have the opportunity to discuss their matter in a constructive setting.
Does It Matter Who Files Divorce First In Wisconsin?
While it might seem like filing first could give you an edge in the litigation, the party who ultimately filed for divorce does not have any bearing on the proceeding in terms of materiality questions of law. The respondent can review the petition for divorce and draft their own response for the court. Wisconsin courts entirely disregard the fact that a party did not elect to initiate divorce when making important decisions regarding the disposition of the divorce trial.
That being said, being the first to file can potentially allow you to have a say in the venue, as the court in which you bring the petition will be the same court in which the divorce case is heard. This means you can potentially limit your travel time to court, making divorce hearings less arduous. However, the court will need both personal and subject matter jurisdiction. The court needs to be a legally appropriate venue under Wisconsin rules of civil procedure. Also, the responding party, the party who did not initiate divorce, does have an opportunity to petition to transfer the venue if there is a more appropriate location under the law. The only benefits of filing for divorce first are beginning the process and setting a timeline for when the marriage is over.
How Does The Length Of Marriage Affect Divorce In Wisconsin?
Yes, the length of the marriage is one of the most critical factors in a divorce proceeding in Wisconsin. It can impact the disposition of the case in several ways. One of the most significant impacts that the length of the marriage can have is the distribution of property. Wisconsin is rare in that it follows the legal theory of community property. Community property is a system in which property that belongs to the marriage is split down the middle, with each party receiving a rough 50/50 share. This does not mean all property belonging to the parties is subject to division.
According to community property theory, the only property that qualifies as the marital property will be divided. This concept is defined as all property acquired during the length of the marriage. However, Wisconsin courts are empowered to deviate from the 50/50 split in certain circumstances. A shorter marriage would give the court a more compelling reason to employ a different method of property division.
How Is Alimony Calculated In Wisconsin?
The length of the marriage also plays an essential role in how Wisconsin courts determine alimony. Wisconsin courts refer to the concept of alimony as "spousal maintenance." Still, this concept functions essentially the same as alimony in other states. Maintenance payments awarded from one spouse to another are intended to lessen the financial burden posed by divorce, primarily to be financially dependent on their spouse.
Wisconsin courts can award different levels of maintenance, including:
- Temporary: generally awarded to support the spouse during the divorce proceeding itself
- Reimbursement: awarded in cases where a party has made a significant investment into the career of the spouse they are divorcing
- Permanent: with payments continuing until the party receiving the award remarries or either spouse passes away.
Several factors go into Wisconsin court's decision-making process when calculating spousal maintenance. These factors generally reflect the economic dependence of the spouse receiving the payment.
The length of the marriage can have a significant impact, as a person who was out of the workforce for a significant amount of time will generally need more support. The earning potential of both parties plays an important role as well. The court considers the following when deciding on spousal maintenance payments:
- The property awarded to each spouse
- The support provided to a spouse during the marriage
- The potential tax consequences of the award on both parties
How Long Do You Have To Be Married In Wisconsin To Get Half Of Everything?
There is no time requirement in Wisconsin for a marriage to qualify for community property division in the event of divorce. As such, any marriage can qualify for a 50/50 division of marital property in the event of divorce. There are still some factors to consider, however. Not all property is subject to division. Anything acquired by the parties before the marriage remains individual property for the purposes of divorce and is not included in a Wisconsin court's court-ordered division in a divorce settlement.
Suppose a party can show they made financial contributions during the marriage to a piece of individual property, say through assisting with mortgage payments on a home in the other spouse's name. In that case, the court may award some property value to capture this inequity. Another factor to consider is particularly short marriages may prompt a court to consider none 50/50 splits, depending on the circumstances of the marriage. Parties should beware that it is not only tangible property subject to the 50/50 division when considering divorce. Debt acquired by either spouse during the marriage will also qualify as community property for the purposes of division.
To learn more about how long divorce could take in Wisconsin, please read here.
Recent Changes to Divorce Laws
Divorce law in Wisconsin has seen the most significant changes in child support. Child support is awarded as part of a parenting plan in divorce. This provides the parent with primary custody of the child with financial support, ensuring both legal parents contribute to the economic burden of raising the child.
In 2018, Wisconsin lawmakers overhauled several aspects of Wisconsin courts to calculate child support payments. The goal of these overhauls was a more equitable division of parental decision-making. Variable costs saw the most significant change. Variable costs can be understood as the reasonable costs incurred outside of essential support. These are expenses related to childcare, private schooling or after school activities, or special needs resulting from a developmental disability. Before the overhaul, variable costs were the responsibility of the party paying child support. Still, the parent with primary custody had total decision-making authority over how and when they would be incurred. This created an inequitable situation, with the party paying the expense having no say.
The 2018 rule rectifies this situation by requiring the parent to define the variable costs during the divorce process, having an agreement with both parents' input before the costs begin to be incurred. The overhaul also saw an update on how custody is calculated to create a shared placement plan. Under the new system, custody is broken down into 6-hour intervals, with an overnight now qualifying as two 6-hour intervals that include a meal being served. The parent with the most overnights in a year is considered primary custody.
The amount of overnights a parent is awarded has an important implication for child support payments. The parent is generally considered incurring the cost of child-rearing while they have custody. As such, a significant inequality in the number of overnights will correspond to higher child support payments to compensate the parent for bearing the lion's share of the cost of child-rearing. In true shared parenting plans, overnights can be split down the middle.
Divorce can be an intimidating process. Learn more about the process of a Wisconsin divorce in our comprehensive guide.
Check out our other article if you want to know more about the types of divorces in Wisconsin.
Having the proper legal counsel can make all the difference. Call our office at (608) - 581 -9876, email info@flaherty-law.com, or schedule a consultation with one of our experienced Wisconsin family law attorneys today. You can also fill out our confidential contact form, and a member of our team will be in touch with you.
If you’re in the Madison, WI area, and are looking for an experienced Madison divorce attorney near you, please feel free to reach out to O’Flaherty Law of Madison at:
6527 Normandy Lane #201A
Madison, WI 53719
(608) – 581-9876
https://www.oflaherty-law.com/location/madison-wisconsin-attorneys
Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.
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